The Committee against Torture, established under article
17 of the Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment,

Meeting on 30 April 2002,

Having concluded its consideration of complaint No.
138/1999, submitted to the Committee against Torture under article 22 of the
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment,

Having taken into account all information made available
to it by the complainant and the State party,

Adopts this Decision under article 22, paragraph 7,
of the Convention.

1.1 The complainant is Mr. M.P.S., a Sri Lankan national of
Tamil ethnicity, who, at the time of submitting his complaint, was detained
at the Villawood Detention Centre in Sydney, Australia. He claims that his
removal to Sri Lanka entailed a violation of article 3 of the Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment by Australia.
He is represented by counsel.

1.2 In accordance with article 22, paragraph 3, of the Convention,
the Committee transmitted the complaint to the State party on 21 June 1999
at 2.35 p.m. Geneva time. At the same time, acting under rule 108 of its rules
of procedure, the Committee requested the State party not to expel the complainant
to Sri Lanka while his complaint was being considered. The Committee notes
the information from the State party that the complainant was removed from
Australia on 21 June 1999. The Secretary-General's note verbale was received
by the Permanent Mission of Australia when the complainant had allegedly already
been deported to Sri Lanka.

The facts as submitted by the complainant

2.1 On 9 September 1997, the complainant arrived in Australia
without a passport or other identification papers. On 15 September 1997, he
applied for refugee status (protection visa) to the Department of Immigration
and Multicultural Affairs. His application was rejected on 25 September 1997.
The decision not to grant a protection visa was confirmed by the Refugee Review
Tribunal (RRT) on 30 October 1997, after conducting a hearing, where a legal
adviser and an interpreter assisted the complainant. Upon decision of the
Federal Court of 13 May 1998, the matter was referred back to the RRT for
re-determination. On 20 August 1998, the Tribunal decided again not to grant
a protection visa, after hearing the complainant. On 3 February 1999, the
federal Court dismissed the complainant's appeal against the second RRT decision.
An appeal to the Full Court of the Federal Court was dismissed on 14 May 1999.
On 3 November 1997, 20 August 1998 and 18 June 1999, his case was considered
not to satisfy the requirements for granting a visa to remain in Australia
on humanitarian grounds. Counsel submits that all effective domestic remedies
have been exhausted.

2.2 Counsel submits that the complainant lived in Nuwara Eliya,
an area in the south of Sri Lanka. In 1989, when fighting broke out between
the pro-Sinhalese movement Janatha Vimurthi Peramuna (JVP) and the Government
in the Nuwara Eliya area, the complainant was arrested and detained for six
to seven months in the Diyatalawa Army Camp on suspicion of being a member
of JVP. During this time, the complainant was allegedly questioned and subjected
to torture by army officers. The complainant's father paid a large amount
of money to secure his release.

2.3 From 1992 to 1995, members of the Liberation Tigers of Tamil
Eelam (LTTE), friends of his wife's family, visited frequently and the complainant
was obliged to provide food and accommodation. On the last occasion, in October
1995, several members of the LTTE came to stay with his family for 15 days.
During this time, the oil tanks in Kolonawa, Colombo, were bombed and the
police believed that the people staying with the complainant's family had
been involved. The complainant was allegedly taken to the police station in
Nuwara Eliya, interrogated and tortured. It is submitted that the complainant
had only been released after three days upon payment of a large amount of
money to the police officer in charge.

2.4 In February 1996, the LTTE accused the complainant of providing
the Government with information on the oil tank attack. Counsel submits that
the complainant was beaten and threatened with death. After intervention by
his family and his wife, he was spared.

2.5 Towards the end of February 1996, the complainant was arrested
by the police and taken to Diyathalawa Army Camp, detained for three days,
and allegedly tortured. Counsel submits that the father of the complainant
paid a large amount of money for his release. Immediately after his release,
the complainant fled Nuwara Eliya for fear of the Sri Lankan authorities and
the LTTE. He stayed with friends in Kandy and later in Hatton for some months,
before he went to Colombo.

2.6 Later in 1996, the Maradana police arrested the complainant
in Colombo, detained him for one week and questioned him on his relationship
with the LTTE. It is submitted that the complainant was beaten every night
by police officers and that he was not given proper food. In March 1997, the
complainant managed to flee Sri Lanka to Cambodia, Bangkok and Sydney.

2.7 Counsel submits that in view of the two arrests of the complainant
with regard to the Kolonawa bomb blast, there is a real chance that he would
be arrested again should he return to Sri Lanka. Counsel believes that the
documents, which have been taken away from the complainant by the police,
have been supplied to the secret police (NIB) and, therefore, the authorities
will be in a position to trace the complainant wherever he lives. Counsel
argues that the complainant had been arrested and come to the attention of
the security forces for providing a safe place to LTTE members who allegedly
were involved in what is considered to be one of the major assassinations
committed by the LTTE. The complainant would very likely be detained and interrogated
at the airport upon his return to Colombo.

2.8 Counsel further submits that there are substantial grounds
for believing that the complainant would be in danger of being subjected to
torture by Sri Lankan police, security forces and the LTTE if he returned
to Sri Lanka. The complainant experienced torture and ill-treatment by the
authorities and the LTTE before he left the country. Counsel quotes Human
Rights Watch reports and reports by the United States Department of State
of 1996 as evidence of a consistent pattern of gross and systematic violations
of human rights in Sri Lanka. Counsel argues that under the Prevention of
Terrorism Act and Emergency Regulations the police can arrest on the basis
of mere suspicion, often based on the presumption of guilt arising merely
from a person coming from the north or east of the country. In such an atmosphere,
counsel sees every chance that the complainant, as a Tamil-speaking young
man from the Eastern Province of Sri Lanka, will be harassed and mistreated
by the authorities on mere suspicion. Counsel quotes from Sri Lankan newspaper
headlines and articles in this regard.

The complaint

3.1 Counsel submits that the evaluation of evidence in asylum
procedures in Australia is deficient. Counsel argues that the Australian immigration
authorities expect an applicant to give the full facts on his claim upon his
arrival. Counsel submits that this is not justified, as asylum-seekers behave
initially in an irrational and inadequate way, do not trust the authorities
and are only ready to tell the true and complete story after having been in
the country for some time. Therefore, the opinion of the Australian Government
that whatever is invoked later is not trustworthy is considered absurd by
counsel, as in cases such as the complainant's new statements have to be accepted
by the RRT in spite of the fact that the story was incoherent, inconsistent
and contradictory in the beginning.

3.2 Counsel claims that the deportation of the complainant to
Sri Lanka violated article 3 of the Convention against Torture and Other Inhuman
or Degrading Treatment or Punishment. Counsel argues that there were substantial
grounds for believing that the complainant would be in danger of being subjected
to torture if deported. Given the absolute prohibition to expel a person where
he risks being subjected to torture, counsel submits that the complainant
should not have been removed.

3.3 Counsel claims that the evidence of a consistent pattern
of gross and massive violations of human rights in Sri Lanka prohibits the
Government of Australia from expelling the complainant.

State party's observations on admissibility and merits

4.1 The State party submits that it has been its practice to
comply with requests for interim measures by the Committee whenever it has
been in a position to do so. However, the complainant was removed from Australia
on 21 June 1999 at 4.30 a.m. Geneva time. The text of the complaint and the
Committee's request was received after the complainant had been removed from
Australia, i.e. in the ordinary mail at the Permanent Mission of Australia
in Geneva in the late morning of 21 June 1999, and, subsequently, on the same
day at 2.36 p.m. Geneva time on the Mission's fax machine.

4.2 The State party contests the allegations of procedural shortcomings
with regard to the handling of evidence when considering the case of the complainant.
The State party submits that the complainant has provided no evidence that
the alleged procedural irregularities amount to a breach of any of the provisions
of the Convention and, therefore, this claim should be dismissed as inadmissible
ratione materiae. Alternatively, the State party submits that, except in limited
circumstances, it is beyond the competence of the Committee to review findings
of fact or the interpretation of domestic legislation by national organs of
the State party. Furthermore, the State party submits that any issue arising
from possible errors of law by the first RRT decision would have been rectified
subsequently. The complainant failed to refer to the second and third decisions
of the Federal Court in this regard.

4.3 The State party contests that there are substantial grounds
for believing that the complainant would be in danger of being subjected to
torture if returned to Sri Lanka. The State party submits that the risk of
ill-treatment by the LTTE alleged by the complainant does not raise an issue
for consideration by the Committee, because the complainant failed to provide
any evidence that the LTTE would act with the consent or acquiescence of the
Sri Lankan authorities. Furthermore, the complainant failed to demonstrate
that the LTTE are exercising quasi-governmental authority over an area to
which he is to be returned and, therefore, could be regarded as an agent for
the purposes of article 3 of the Convention. Alternatively, the State party
submits that the complainant has failed to submit that he is at risk of being
tortured by the LTTE. In this regard, the State party requests that the complaint
be declared inadmissible ratione materiae. With regard to the risk of being
tortured by Sri Lankan authorities, the State party submits that the complainant's
evidence lacks credibility or, alternatively, is not sufficient to establish
a real, foreseeable and personal risk of being subjected to torture.

4.4 The State party requests that the complaint be declared
inadmissible ratione materiae as far as the complainant relies on an interpretation
of article 3 of the Convention that a pattern of gross violations of human
rights in the receiving State is sufficient to trigger the international protection
of article 3.

4.5 Finally, the State party notes that the right not to be
tortured is protected under domestic law in Sri Lanka. Furthermore, Sri Lanka
ratified the Convention and is a party to the International Covenant on Civil
and Political Rights.

Issues and proceedings before the Committee

5. The Committee notes that the Federal Court had dismissed
the complainant's claim on 18 June 1999, thus leaving the complainant with
only three days to avail himself of article 22 of the Convention.

Considerations of the admissibility

6.1 Before considering any claims contained in a communication,
the Committee against Torture must decide whether the communication is admissible
under article 22 of the Convention. The Committee has ascertained, as it is
required to do under article 22, paragraph 5 (a), of the Convention, that
the same matter has not been and is not being examined under another procedure
of international investigation or settlement.

6.2 The Committee notes the State party's claim that the communication
is inadmissible ratione materiae (see paras. 4.2-4.3). The Committee, however,
is of the opinion that the State party's arguments raise substantive issues
which should be dealt with at the merits and not the admissibility stage.
The Committee, therefore, considers that the conditions laid down in article
22, paragraph 5 (b), of the Convention have been met. Since the Committee
sees no further obstacles to admissibility, it declares the communication
admissible.

Consideration of the merits

7.1 The issue before the Committee is whether the forced return
of the complainant to Sri Lanka violated the obligation of Australia under
article 3 of the Convention not to expel or return a person to another State
where there are substantial grounds for believing that he or she would be
in danger of being subjected to torture.

7.2 The Committee must decide, pursuant to article 3, paragraph
1, of the Convention whether there were substantial grounds for believing
that the alleged victim would have been in danger of being subjected to torture
upon return to Sri Lanka. In reaching this decision, the Committee must take
into account all relevant considerations, pursuant to article 3, paragraph
2, of the Convention, including the existence of a consistent pattern of gross,
flagrant or mass violations of human rights. The aim of the determination,
however, is to establish whether the individual concerned would be personally
at risk of being subjected to torture in the country to which he or she would
return. It follows that the existence of a consistent pattern of gross, flagrant
or mass violations of human rights in a country does not as such constitute
a sufficient ground for determining that a particular person would be in danger
of being subjected to torture upon his return to that country; additional
grounds must exist to show that the individual concerned would be personally
at risk. Similarly, the absence of a consistent pattern of gross violations
of human rights does not mean that a person cannot be considered to be in
danger of being subjected to torture in his or her specific circumstances.

7.3 In the present case, the Committee notes the State party's
argument that it is beyond its competence to review findings of fact or the
interpretation of domestic legislation by national organs of the State party.
The Committee agrees that it cannot overturn an authoritative domestic organ's
interpretation of the application of domestic legislation, but reiterates
that it is not bound by findings of fact that are made by organs of the State
party and instead has the power, provided for by article 22, paragraph 4,
of the Convention, of free assessment of the facts based upon the full set
of circumstances in every case(1).The Committee
recalls that, even though there may be some remaining doubt as to the veracity
of the facts adduced by a complainant, it must ensure that his security is
not endangered (2). In order to do this, it is not
necessary that all the facts invoked by the complainant should be proved;
it is sufficient that the Committee should consider them to be sufficiently
substantiated and reliable.

7.4 With regard to the complainant's claim that he was in danger
of being subjected to torture by the LTTE, the Committee recalls that the
State party's obligation to refrain from forcibly returning a person to another
State where there are substantial grounds for believing that he or she would
be in danger of being subjected to torture is directly linked to the definition
of torture as found in article 1 of the Convention. For the purposes of the
Convention, according to article 1, "the term 'torture' means any act by which
severe pain or suffering, whether physical or mental, is intentionally inflicted
on a person for such purposes as obtaining from him or a third person information
or a confession, punishing him for an act he or a third person has committed
or is suspected of having committed, or intimidating or coercing him or a
third person, or for any reason based on discrimination of any kind, when
such pain or suffering is inflicted by or at the instigation of or with the
consent or acquiescence of a public official or other person acting in an
official capacity". The Committee recalls its previous jurisprudence that
the issue whether the State party has an obligation to refrain from expelling
a person who might risk pain or suffering inflicted by a non-governmental
entity, without the consent or acquiescence of the Government, falls outside
the scope of article 3 of the Convention (3).

7.5 The Committee notes with concern the reports of torture
by public officials in Sri Lanka, including those submitted by the complainant,
but points out that, for the purposes of article 3 of the Convention, substantial
grounds must exist that create a foreseeable, real and personal risk of torture
in the country to which the complainant is to be returned. On the basis of
the facts as submitted by the complainant, the Committee is of the opinion
that such grounds have not been established. Therefore, the Committee considers
that the complainant has not substantiated his claim that he was personally
at a real risk of being subjected to torture, if returned to Sri Lanka.

8. The Committee against Torture, acting under article 22, paragraph
7, of the Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, concludes that the removal of the complainant to
Sri Lanka, on the basis of the information submitted, did not constitute a
breach of article 3 of the Convention.